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1st Rent Appeal No. 584 of 1981, decided oil 21st August, 1984.

---O.XLI, r. 27---Sind Rented Premises Ordinance (XVII of 1979), S.21- Production of additional evidence in rent appeal--Application filed al late stage--Evidence sought to be produced, though within knowledge of appellant, not mentioned earlier--Object of O.XLI, r.27, C.P.C. was to allow that additional evidence in appellate Court which was necessary for determination of controversy and not to fill up lacuna created due to negligence of parties--Additional evidence sought to be produced not being relevant, applications dismissed.

-----S.21----Ejectment---Ground of bona fide need for personal use---Plea that during pendency of case another shop was let out by landlord established--Such act of landlord militating against his bona fide personal need--No evidence being produced to show purpose for which disputed shop was required and was more suitable than other shop--Order of ejectment set aside.

S.S. Hamid for Appellant.

Shaik Haider & Co. for Respondent.

Date of hearing: 21st August, 1981.

The respondent filed application for ejectment against the appellant ore two ground viz. (i) default in payment of rent front March, 1978 to June, 1978, and (ii) that the shop No.2 is bona fide required for occupation of his son Ehsanul Haq. The appellant denied that default has been committed and also that the shop is bona fide required for Ehsanul Haq. The learned Controller held that no default has been committed but on issue relating to bona fide use and occupation finding was given in the affirmative and the appellant was ordered to vacate the premises in dispute.

Mr. S.S. Hamid the learned counsel for the appellant has filed three applications which have been placed for order. All the applications are under Order XLI, rule 27 for production of additional evidence which include the statement of the respondent and his son in another rent case, the order passed by the Controller, extract from PTI Register end photographs with tile object to establish that the respondent has several shops which are lying vacant. Another application was filed earlier which has been dismissed by me by a separate order. These applications have been filed at this late stage in respect of the shops which are said to be lying; vacant since 1976. This fact would have within the knowledge of tier appellant who could have very conveniently brought evidence on record stating these facts in his affidavit of evidence but nothing has been done. Even this suggestion lids not been made to tire respondent during cross-examination. The object of Order XLI, rule 27 is that such additional evidence be allowed to be brought on record which is necessary for determining the controversy between the parties. It is not intended to fill up the lacuna created due to the negligence of the parties. The statement of the witness and the orders passed by the Controller ire, another case which has been filed by the respondent relates to another shop and to my mind it is not at all relevant to the present controversy. By the third application the respondent has filed two certificates to show that one of his sons for whom he has obtained ejectment order in a different proceeding is employed some where. This fact cart hardly improve the case of the appellant, or is at all necessary for determining the controversy between the parties as in the present case the question is whether the premises is required for Ehsanul Haq. applications are, therefore, dismissed.

Mr. Hamid has pointed out that ill the ejectment application it has been pleaded that the shoji s required for Esattishamul flag whereas in the evidence plea has been taken that it is required for Ehsanul Haq. A close scrutiny of the ejectment application reveals that although the name of Eattishamul Haq was typed, it was corrected as Ehsanul Haq.

Now coming to the question whether the shop is bona fide required by the respondent for his son Ehsanul Haq, the respondent has examined himself and his son Ehsanul Haq. The respondent while cross-examining, the witness has made suggestion that during the pendency of the case Shop No.6 was let out to Tariq but this suggestion was denied by the witness. The appellant in his affidavit of evidence repeated this fact that Shop No. 6 has been let out to Tariq during the pendency of the case. The other witness Adam also slated the same fact in his affidavit. Although these witnesses were cross-examined on the other aspects of the case, this statement has remained un challenged. During argument it has been admitted that Tariq is occupying Shop No.6 and was previously occupying Shop No.3, there is nothing on the record to show on what date Tariq was inducted as tenant in Shop No.6. It was open to the respondent to have examined Tariq or produced tenancy agreement to show that Tariq was not inducted in shop No.6 during the pendency of the case. As the statement of the appellant and his witness in this regard has remained unchallenged it is established that during the pendency of tile case Shop No.6 had fallen vacant which was let out to Tariq and therefore, such act of the respondent militates against his bona fide personal requirement. No evidence has been produced to show the purpose for which the disputed Shop No.2 is required by the respondent and is more suitable than Shop No.6. In the circumstances, I allow the appeal and set aside the order of the Controller.

M.I. Appeal allowed.

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